The Relevance of Practice for Human Rights Theory
Jesse Tomalty
Nuffield College, Oxford
[email protected]
[The following is an extended abstract rather than a full paper. I’d be happy
to share the full version upon request, in due course.]
In The Idea of Human Rights, Charles Beitz outlines two approaches to theorizing
about human rights. One approach involves conceiving human rights as ‘inferences from
some high-level ideas or principles of broader scope, adapted to take account of the particularities of the arena of immediate interest’.1 The other approach involves taking human
rights as ‘principles constructed for this arena, taking account of an unsystematic array
of ethical and practical considerations, brought into a relationship whose reasonableness
is judged by their coherence, fitness for purpose, and capacity to account of pre-reflective
judgements of which we feel confident’. Theorists of human rights have traditionally taken
the former approach, whereas Beitz argues that the latter is superior. My purpose in this
paper is to ascertain whether we should prefer one approach over the other.
Beitz characterizes his approach as ‘practical’. It is helpful to begin by distinguishing two
features of Beitz’s ‘practical’ approach. One is that it takes human rights to be practicedependent rather than practice-independent. The other is that it employs bottom-up rather
than top-down reasoning. Beitz himself conflates these two features, but I think that it is
important to keep them distinct. Indeed, as we shall see, keeping them distinct allows us
to better understand where some of the most prominent theories of human rights disagree,
and to arbitrate between them.
According to the practice-dependent view (pD), the formulation and justification of a
conception of human rights depends on facts about the practices that human rights are
meant to govern.2 By contrast, the practice-independent view (pI) sees human rights as
normative principles that are not tied to any particular practice, although they may have
application in any number of practices. The formulation and justification of human rights
on pI therefore does not depend on facts about the practices they are intended to govern.
1
Charles Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009), p. 7.
The distinction between practice-dependence and practice-independence is made by Andrea Sangiovanni
in ‘Justice and Priority of Politics to Morality’, Journal of Political Philosophy, 16(2008): 137-164, p. 138.
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Traditional accounts of human rights take the practice-independent view. According to
these accounts, human rights are moral rights that are held by all humans simply in virtue
of being human. Proponents of traditional accounts take their task to be fleshing out this
very thin notion by providing an account of what it is in virtue of being human that grounds
human rights. It is this grounding that distinguishes human rights from other moral rights.
Authors have variously proposed that human rights are grounded in normative agency,3
important interests,4 basic needs,5 and basic capabilities.6 These grounds determine the
content of human rights, though the move from grounds to rights is always mediated by
certain practical and conceptual considerations, such as constraints on the feasibility of the
fulfillment of rights, and what it is for something to be a right.
Recently, a number of alternative accounts of human rights have been proposed, which
take the practice-dependent view. These accounts characterize human rights by the function they have within a particular social practice. These accounts differ mainly with respect
to the function they take to be characteristic of human rights. John Rawls, for example,
characterizes human rights as constraints on the sovereignty of states, where human rights
serve to justify forceful intervention by states in the affairs of other states.7 . Joseph Raz
holds a similar view, but with a broader interpretation of intervention, which includes noncoercive forms of intervention.8 And Beitz characterizes human rights as ‘standards for
domestic institutions whose satisfaction is a matter of international concern’.9
To better understand the disagreement between pI and pD accounts of human rights,
it is helpful to emphasize a point on which they both agree. Both kinds of accounts
agree that human rights have important functions in existing practices. Proponents of pI
accounts agree that human rights have many of the functions they are thought to have on
pD accounts. The central point of disagreement between pI and pD accounts concerns not
the fact that human rights have certain functions in existing practices, rather it concerns
the relevance of these functions to theorizing about human rights.
Proponents of pI see human rights as independently justified norms that happen to have
various functions in social practices because of certain features that human rights have.
The functions that human rights have on a pI account are implications of a conception of
human rights that are available once the conception has been worked out. Human rights
on a pI account can therefore be fully apprehended without reference to the functions that
they have in any particular practice. By contrast, for proponents of pD, the justification
3
See James Griffin, On Human Rights (Oxford: Oxford University Press, 2008)
See John Tasioulas, ‘Human Rights and the Values of Personhood’, European Journal of Philosophy
10(2002): 79-100
5
See David Miller, National Responsibility and Global Justice (Oxford: Oxford University Press, 2007)
6
Amartya Sen, ‘Elements of a Theory of Human Rights’, Philosophy and Public Affairs 32(2004): 315356.
7
See John Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999), pp.
8
Joseph Raz, ‘Human Rights without Foundations’ in The Philosophy of International Law, John
Tasioulas and Samantha Besson, eds. (Oxford: Oxford University Press, 2010), pp.
9
The Idea of Human Rights, p. 128.
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of human rights depends on the functions they are meant to have within the practices in
which they are meant to apply. This is because according to pD, the concept of a human
right has certain functions built into it, and can therefore not be conceived independently
of these functions.
The second characteristic of Beitz’s practical approach is that it employs bottom-up, as opposed to top-down reasoning. The distinction between bottom-up and top-down reasoning
is introduced by Griffin. As he explains, a ‘top-down’ approach takes as its starting point a
general account of value, then a full-blown moral theory, and finally an account of human
rights as they pertain to and describe aspects of that theory. This sort of approach begins
with high-level moral principles and derives an account of human rights from them. A
‘bottom-up’ approach, by contrast, starts with human rights as they appear in practice, as
used by ‘politicians, lawyers, social campaigners, as well as theorists of various sorts’. The
bottom-up approach then goes on to establish which higher-level moral principles must be
invoked in order to account for the normative force of human rights. I take it that Beitz
intends to describe a bottom-up approach when he says that we should take ‘the doctrine
and practice of human rights as we find them in international political life as the source
materials for constructing a conception of human rights’.10
It is worth highlighting how the bottom-up approach is distinct from the practicedependent approach. The bottom-up approach starts with human rights as we find them
in practice, but it is not committed to the view that the functions that we find them to have
in practice are inherent to the very concept of human rights. The bottom-up approach is
indifferent between the view that the concept of human rights contains certain functional
roles and the view that the functional roles that human rights play are not inherent to
them, but rather follow from certain features they have in light of the particular social
context we find ourselves in.
Griffin provides two forceful reasons in support of pursuing the bottom-up approach to
theorizing about human rights. First, Griffin argues that the bottom-up approach is desirable because we may not have to rise up to the level of abstract moral principles in order
to answer the questions about human rights that are most pressing. Higher-level moral
principles can be highly contentious, and so a successful bottom-up approach promises to
allow for agreement on human rights despite disagreement over higher-level principles.11
Second, the bottom-up approach assures us that we are not just changing the subject.
We are interested in human rights because of their ubiquitous invocation in practical discourse. As Griffin argues, the top-down approach risks changing the subject. Starting with
a high-level moral theory and attaching the term human rights to some entity within it is,
according to Griffin, stipulative. If we do not take into account how the term is used in
10
11
The Idea of Human Rights, p.102.
On Human Rights, pp.
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practice, we would have no reason for thinking that the term should attach to any entity
in particular within our moral theory.12
Where Beitz and Griffin disagree is on whether the bottom-up approach yields a pI or
a pD account of human rights. Griffin interprets human rights as we find them in practice
as context-sensitive applications of higher-level pI rights we have simply in virtue of being
human.13 Beitz, by contrast, argues that this sort of account distorts our understanding
of human right as we find them in practice.14 He thinks that this kind of view is untenable
because any account of the normative content of human rights understood as rights we
have simply in virtue of being human will be too narrow to yield anything like the extensive list of human rights we find in practice; and any account of the normative content of
human rights built up from human rights as we find them in practice will exceed the scope
of rights we have simply in virtue of being human.
I want to suggest that the question of whether a pI account can support the extensive
set of rights we find in human rights practice, or at least the uncontroversial ones (which
will still, presumably make up a quite extensive set), might just be besides the point. The
question for the proponent of the bottom-up approach is not whether a pI account can
support human rights practice, but whether we need to refer to the idea of rights we have
simply in virtue of being human in order to answer the questions about human rights that
are of interest to us. In order to answer this question, we first need to know which questions
about human rights we are interested in. Second, we need to know whether a pD account
of human rights can provide adequate means of answering these questions without recourse
to the pI conception of human rights as rights we have simply in virtue of being human.
We are interested in providing a theory of human rights in order to be able to evaluate human rights affirmations and claims about human rights violations, and in order to
understand what they imply normatively. The sorts of questions we are interested in therefore include: Is there a human right to x ? If so, what is required in order for the human
right to x to be fulfilled (for these right-holders, for those right-holders, or for all rightholders)? Who is responsible for the fulfilment of this right? What does it mean for the
human right to x to be violated? What follows from the violation of this right?
What reasons might there be for thinking that no pD account of human rights will be
able to furnish us with the resources needed to answer these questions?
One possible reason is that human rights as we find them in practice are not sufficiently
12
Ibid.
See Griffin, On Human Rights, pp. For a similar view, see also Pablo Gilabert, ‘Humanist and Political
Perspectives on Human Rights’, Political Theory 39(2011): 439-467.
14
The Idea of Human Rights, p. 50
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cohesive to be amenable to interpretation as norms governing a unified practice.15 Any
interpretation of human rights as a practice will therefore arbitrarily exclude some human
rights. While I think it is true that some of the pD accounts on offer provide too narrow
an interpretation of the practice to capture the multifarious ways in which we find human rights to function in practice, a sufficiently broad interpretation might nevertheless
be available. At any rate, lack of cohesion poses just as much of a problem for pI accounts
committed to the bottom-up approach. They too involve an interpretation of human rights
in practice; but instead of characterizing human rights practice on the basis of the functions
we find human rights to have, they characterize it instead as the application of higher-level
abstract rights. But if the practice really lacks cohesion, it is hard to see how it could be
characterized in such a unified way.
I suggest that the fact that human rights practice lacks cohesion actually speaks in
favour of a pD account. Rather than trying to come up with an account of abstract human
rights that can make sense of the variety of functions that human rights have in practice,
the pD approach starts with those functions. It might turn out that the things called human rights in social life do not make up one unified practice, but rather a set of practices
more or less related on the basis of historical application of the term ‘human rights’ and a
vague sense of being part of a longer tradition.
A second possible reason to think that no pD account will be able to provide the means to
answer the questions about human rights of interest to us is that any effort to provide a
conception of human rights based on their function will presuppose a prior pI conception
of human rights. As we have seen, on a pD account of human rights, the function that
human rights are interpreted as having plays an important role in determining what human
rights there are. If, for example, the function of human rights is taken to be to limit the
sovereignty of states by justifying intervention on the part of other states, in providing a
conception of human rights, we must ask ourselves what principles would justify intervention by states in the affairs of otherwise sovereign states. Miller has recently argued that
this presupposes a conception of human rights since it is on the grounds of human rights
that such intervention would be justified.16
But this objection doesn’t succeed. While it is true that providing a conception of
human rights on the basis of their function will require reference to normative principles
and values, some or all of which might be practice-independent, it does not follow that the
normative principles and values referred to must themselves be human rights. Reasoning
about the justification for state intervention might have a lot in common with reasoning
about human rights on a pI account in the sense that both will refer to, for example, important human interests. But it doesn’t follow that we need a prior conception of human
rights in order to reason about the justification for state intervention.
15
16
REF.
‘Joseph Raz on Human Rights: a critical appraisal’, draft manuscript.
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Finally, it might be objected that we need a pI conception of human rights in order to
avoid a status quo bias. As Pablo Gilabert argues, a pD account ‘risks taking too much for
granted from the status quo and failing to make sense of the universalist moral aspirations
that are crucial to render the practice of human rights a progressive development in modern
politics’.17
This objection fails for much the same reason as the previous one. It is undoubtedly
the case that we need to refer to pI considerations for the reasons Gilabert mentions. But
pI considerations are not the same as pI human rights, and it is not clear that we need to
refer to a conception of the latter in order to evaluate existing practices.
Having considered and rejected these possible objections, there seems to be little reason to
reject out of hand the possibility that a pD account could provide the resources necessary
to answer the questions we need a theory of human rights to answer. The best way to
argue positively that a pD account can provide these resources is to provide a plausible pD
account that succeeds in this respect. In the extended version of this paper, I discuss where
the pD accounts currently on offer fall short, and I propose an outline for an alternative
‘pluralistic’ pD account that promises greater success.
17
‘Humanist and Political Perspectives on Human Rights’, p. 454.
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